Excerpt: - .....behalf of the plaintiffs has argued that as this is a mere definition it should be deemed to have retrospective-effect. reference was made to the case of attorney-general v. theobald [1890] 24 q. b. d. 557. that case however related to the construction to be put upon a certain declaratory provision or provisions and the decision therein has been subsequently somewhat weakened by the observations made in the case of young v. adams [1898] a.c. 469 as was; pointed out by my learned brother mitter, j., in the case of nepra v. sajer pramanik : air1927cal763 . the ordinary rule of construction is against retrospective effect unless there is an express provision to that effect. a distinction too must be drawn between provisions which are of a substantial character e.g., relating to the.....

Judgment:

Graham, J.

1. This is a reference from the Munsif, 2nd Court, Brahmanberia under Rules 1 and 6, Order 46, Civil P.C., inviting our decision upon a point of law which is raised in the letter of reference. The question involved is whether the Munsif sitting as a Small Cause Court Judge has jurisdiction to try the suit or whether he has not got such jurisdiction and the suit should be tried by a Munsif under the ordinary procedure.

2. The facts shortly are that the plaintiff instituted a suit for recovery of the price of some crops from the defendants on the allegation that the defendants were labourers who had agreed to pay to them and their cosharers a certain share of the crops while they were to retain the remainder of the crops in lieu of wages. The money sought to be recovered was in respect of the years 1333 to 1335 B. S. (1926 to 1928.)

3. The defence set up by the defendants was that they were settled raiyats in the village and were raiyats in respect of this land also and that they were recorded as such at the time of the cadastral survey, They therefore took the plea that the suit was not maintainable in a Small Cause Court. They further pleaded that Section 16, Ben. Ten. Act, was a bar to the plaintiffs getting a decree in the suit inasmuch as they had not complied with the provisions of Section 15 of that Act.

4. The main point which arises is as to whether Sub-section 17, Section 3, Ben. Ten. Act, as amended in 1928, is retrospective in its effect or not. The learned advocate who appeared on behalf of the plaintiffs has argued that as this is a mere definition it should be deemed to have retrospective-effect. Reference was made to the case of Attorney-General v. Theobald [1890] 24 Q. B. D. 557. That case however related to the construction to be put upon a certain declaratory provision or provisions and the decision therein has been subsequently somewhat weakened by the observations made in the case of Young v. Adams [1898] A.C. 469 as was; pointed out by my learned brother Mitter, J., in the case of Nepra v. Sajer Pramanik : AIR1927Cal763 . The ordinary rule of construction is against retrospective effect unless there is an express provision to that effect. A distinction too must be drawn between provisions which are of a substantial character e.g., relating to the difference in the status of a bargadar as provided by the amended Act compared with the law as it previously stood.. We are clearly of opinion that the section in question is not retrospective in its effect and that being so we must hold that the Munsif in his capacity as a Small Cause Court Judge has no jurisdiction to try the suit. The proper course? for him to adopt is to return the plaint so that it may be filed in a proper Court and the suit tried by a Munsif under the ordinary procedure.